Monette v. Trummer

• Decision Date: 26 April 2013
• Citation: 105 A.D.3d 1328,2013 N.Y. Slip Op. 02861,964 N.Y.S.2d 345
• Parties: Robert K. MONETTE and Sharon M. Monette, Plaintiffs–Respondents, v. Christina L. TRUMMER, et al., Defendants, Jim Ball Pontiac–Buick–GMC, Inc. and Jim Ball Holdings, LLC, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1328
964 N.Y.S.2d 345
2013 N.Y. Slip Op. 02861

Robert K. MONETTE and Sharon M. Monette, Plaintiffs–Respondents,
v.
Christina L. TRUMMER, et al., Defendants,
Jim Ball Pontiac–Buick–GMC, Inc. and Jim Ball Holdings, LLC, Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

April 26, 2013.

[964 N.Y.S.2d 346]

Law Office of Destin C. Santacrose, Buffalo (Christopher R. Turner of Counsel), for Defendants–Appellants.

Dwyer, Black & Lyle, LLP, Olean (Kevin M. Habberfield of Counsel), for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.

MEMORANDUM:

[105 A.D.3d 1328]Plaintiffs commenced this action seeking damages for injuries sustained by Robert K. Monette (plaintiff) when a parked vehicle in which he was seated was rear-ended by a vehicle owned by defendant Jesse L. Ball and operated by defendant Christina L. Trummer. Trummer had borrowed the vehicle from her boyfriend, defendant David Leederman, who in turn had been loaned the vehicle by Jim Ball Pontiac–Buick–GMC, Inc. (defendant) while defendant was servicing Leederman's pickup truck. In the complaint, as amplified by the bill of particulars, plaintiffs assert, inter alia, that defendant is vicariously liable under Vehicle and Traffic Law § 388 as a co-owner of the vehicle involved in the accident. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint and all cross claims against it. We reverse.

On the date of the accident, Leederman brought his pickup truck to defendant for servicing, and defendant agreed to loan Leederman a vehicle while it repaired his truck. Defendant owned four or five “loaner vehicles,” but those vehicles were all with other customers at that time. After Leederman was unable to rent a vehicle from a nearby rental company, defendant's chief financial officer asked Jesse

[964 N.Y.S.2d 347]

Ball, an employee of defendant[105 A.D.3d 1329]and the daughter of defendant's owner, James Ball, whether she would be willing to permit Leederman to use her vehicle while his truck was being serviced. She agreed, and Leederman signed a “rental agreement” with defendant. Later that evening, Leederman allowed Trummer to drive Jesse Ball's vehicle to work, whereupon the subject accident took place.

Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner's express or implied permission ( see§ 388[1]; A Dan Jiang v. Jin–Liang Liu, 97 A.D.3d 707, 708, 948 N.Y.S.2d 675;Vyrtle Trucking Corp. v. Browne, 93 A.D.3d 716, 717, 940 N.Y.S.2d 279;Mikelinich v. Caliandro, 87 A.D.3d 99, 102, 927 N.Y.S.2d 128). The term “owner” is defined as “[a] person, other than a lien holder, having the property in or title to a vehicle ... The term includes a person entitled to the use and possession of a vehicle ... subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle ... having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days” (§ 128; see§ 388[3] ).

We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle. Plaintiffs concede that Jesse Ball, not defendant, was the titleholder of the vehicle ( see Zegarowicz v. Ripatti, 77 A.D.3d 650, 652, 911 N.Y.S.2d 69;Them–Tuck Chung v. Pinto, 26 A.D.3d 428, 429, 809 N.Y.S.2d 572). Plaintiffs further concede that defendant did not “hav [e] the exclusive use [of the vehicle], under a lease or otherwise, for a period greater than thirty days” (Vehicle and Traffic Law § 128; see A Dan Jiang, 97 A.D.3d at 708;Progressive Halcyon Ins. Co. v. Giacometti, 72 A.D.3d 1503, 1506, 899 N.Y.S.2d 783). Plaintiffs contend, however, that defendant possessed an unspecified “property interest” in the vehicle, thus rendering it a “co-owner” within the ambit of Vehicle and Traffic Law § 388. We reject that contention.

The record establishes that Jesse Ball leased the vehicle at issue from GMAC. Although Jesse Ball was an employee of defendant, the vehicle was her personal vehicle. Jesse Ball made the lease payments on the vehicle and paid for the insurance on the vehicle, which was insured under a policy separate from that of defendant's policy. By contrast, defendant's loaner vehicles were owned by defendant and insured under a policy of insurance issued to defendant. Further, the record reflects that Jesse Ball's vehicle...